Douglas v Governor and Director of Prisons; Ramoon v Governor and Director of Prisons
| Jurisdiction | Cayman Islands |
| Judge | (Field, Moses and Birt, JJ.A.) |
| Judgment Date | 27 April 2022 |
| Court | Court of Appeal (Cayman Islands) |
(Field, Moses and Birt, JJ.A.)
Prisons — transfer of prisoner — judicial review — prisoners imprisoned for murder challenged Governor’s decision to transfer them to English prison pursuant to Colonial Prisoners Removal Act 1884 — Bill of Rights applied to Governor’s decision and determination of applications for judicial review
Held, ruling as follows:
(1) The BOR applied to the Governor’s decisions pursuant to the 1884 Act. Under s.28(d) of the BOR, the Governor was a “public official” when “carrying out [the] public function or duty” of considering whether to concur in the decision to remove a prisoner. Section 24 of the BOR provided that “[i]t is unlawful for a public official to make a decision or to act in a way that is incompatible with the Bill of Rights unless the public official is required or authorised to do so by primary legislation, in which case the legislation shall be declared incompatible with the Bill of Rights and the nature of that incompatibility shall be specified.” A problem arose as to how the Grand Court and the Court of Appeal should review the decisions of the Governor, plainly acting in right of the Cayman Islands and required to act in conformity with the BOR, when he had exercised apower under the 1884 Act in respect of which there was no express obligation to interpret it in accordance with the BOR. The 1884 Act applied both in the United Kingdom and in the Cayman Islands and it had to be interpreted and applied in the same way in each jurisdiction. On any review of a decision to remove by the Foreign Secretary in the United Kingdom, the courts would be bound to apply the interpretive obligation under s.3 of the Human Rights Act 1998 to the 1884 Act and to interpret the Secretary of State’s powers consistently with the rights enshrined in the European Convention on Human Rights. The consequence of the need to apply the 1884 Act in a manner compatible with the Human Rights Act and in the same way in both jurisdictions was that, by virtue of s.24 of the BOR, the Governor must exercise his powers as a member of the removing authority in a way that was compatible with the BOR. The BOR formed the framework according to which the decision of the Governor fell to be judged (paras. 49–62).
(2) The interference with the appellants’ rights was in accordance with the law. The discretion conferred on the Governor by s.2 of the 1884 Act, that it appeared to the Governor to be expedient to remove a prisoner, was not so broad that it failed to provide adequate legal protection against abuse. The expression “in accordance with the law” required that the law must be adequately accessible and foreseeable. In essence, what was required was protection, under the legislation conferring the power, against the exercise of an arbitrary discretion. Absent an identifiable legal framework, there were no means of measuring whether the exercise of that power was proportionate. Proportionality should be tested by considering (a) whether the objective was sufficiently important to justify the limitation of a fundamental right; (b) whether it was rationally connected to the objective; (c) whether a less intrusive measure could have been used; and (d) whether, having regard to these matters and to the severity of the consequences, a fair balance had been struck between the rights of the individual and the interests of the community. The objective identified in s.2 of the 1884 Act was whether it appeared that removal was “expedient for [the prisoner’s] safer custody.” The objective therefore required an assessment of risk of danger were the prisoner not to be removed when compared with alleviation of that risk on removal. That was a legitimate and justifiable objective. It was difficult to see how it could be achieved by any greater precision as to the circumstances in which the risk would justify removal and as to those in which it would not. The terms of s.2 did not obviate the need for any court scrutinizing the decisions of the removing authority from being satisfied that interference with the prisoners’ rights was necessary, and therefore requiring an assessment of proportionality. It was inevitable that there would be imprecision in cases involving national security and there was a need to provide protection against abuse. A measure which interfered with a prisoner’s rights could not be “in accordance with the law” unless there were safeguards against abuse. Within the legal framework under the 1884 Act and the BOR the decisions were capable of being challenged and assessed in a fair way and theframework was capable of producing a fair and proportionate result. The appellants had, subject to PII restrictions, received reasons. They had been entitled to bring judicial review proceedings, to legal representation and to consideration of their rights to maintain family relationships under the BOR. There was no need to introduce any policy as to the criteria to be applied to decisions to remove or as to the process for challenging such decisions (paras. 71–91).
(3) A closed material procedure was available to the Grand Court and to the Court of Appeal. Within the Cayman Islands there was no express authority for a CMP. The court determined that a CMP was available in this case. First, the alternatives, if a CMP were unavailable in this case, were unsatisfactory. Although the court had been concerned as to whether it would be opening the door too wide, this case was concerned with decisions which, it was accepted, interfered with important rights concerning the prisoners’ ability to retain some form of family ties. Those decisions must therefore be justified and proportionate. The right of the prisoners to insist that the Governor must establish that they were justified and proportionate could only be vindicated by judicial review, and could only be justly and fairly vindicated by an effective judicial review. No judicial review of the Governor’s decisions could be considered effective and just unless the court considered the justification and proportionality of the decisions on the same basis and on the same information as that which was considered by the Governor. Secondly, the appellants’ right to challenge the decisions and to have their challenge determined by the court was enshrined in s.26(1) of the BOR, but this would not be possible without a CMP. In a case such as this, where, because so much of the information was subject to PII, there could be no effective judicial review, the court would rule that a CMP was available so as to enable the court to fulfil its obligations under s.26(1). The case should be remitted for hearing by the Grand Court of the issues of justification and proportionality of the impugned decisions using a CMP (paras. 145–150).
(4) The interests of the appellants’ families and children had not been ignored. Letters sent from the Attorney General’s Chambers made specific reference to the appellants’ children. There was evidence in the affidavit from the Prison Service that the Overseas Territories Directorate made it clear that consideration would need to be given to the appellants’ right to family life in any transfer. Whether sufficient weight was given to maintaining a relationship with the children, of whom the appellants were not the primary carers, had to await the court’s view after a closed material procedure. The principles which must be applied were clear from HH v. Deputy Prosecutor of the Italian Republic, Genoa ([2012] UKSC 25). The interests of children and their relationship with their father might be overridden by the public interest which flowed from their father’s conviction and ongoing considerations of national security or public safety (paras. 154–155).
(5) The court made some observations on the appellants’ complaint as to the failure of the respondents to provide adequate facilities for their secure custody within the Cayman Islands. It was a matter for political decision within the Cayman Islands as to how resources were allocated and as to how pressing was the need to improve accommodation for Category A life prisoners. The appellants’ argument that failure to deploy resources could be no defence to a failure to respect the prisoners’ rights was not a direct challenge to the decision not to build a different or more secure prison. It was open to them, on the pleadings, to make that argument. Their argument was not that the failure to build or rebuild a prison was unlawful but rather that if there was an unjustified and disproportionate interference with the prisoners’ rights then that failure would not afford a defence. It was open to them to make that argument on the pleadings. Resolution of the matter would be for the Grand Court. However, the court made this further comment: there was clear evidence that the problems of security were not to be solved merely by fresh accommodation. The influence of these two gang leaders on the Cayman Islands, whether in the existing prison or in new accommodation, was such that it was open to the removing authority to conclude that the risk would persist unless they were removed from the Islands. Whether that view was open to the Governor and the Foreign Secretary would be a matter for consideration on all the material (paras. 156–160).
(1) AHK v. Home Secy., [2012] EWHC 1117 (Admin); further proceedings, [2013] EWHC 1426 (Admin), considered.
(2) Ahmed v. H.M. Treasury, [2010] UKSC 2; [2010] 2 A.C. 534; [2010] 2 W.L.R. 387; [2010] 4 All E.R. 829; [2010] U.K.H.R.R. 204, referred to.
(3) Al Rawi v. Security Serv., [2011] UKSC 34; [2012] 1 A.C. 531; [2011] 3 W.L.R. 388; [2012] 1 All E.R. 1; [2011] U.K.H.R.R. 931, considered.
(4) BX v. Home Secy., [2010] EWCA Civ 481; [2010] 1 W.L.R. 2463; [2010] U.K.H.R.R. 766, considered.
(5) Bank Mellat v. H.M. Treasury (No. 1), [2013] UKSC...
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